Another Lemon

Florida’s public school establishment could hardly have a better friend than Florida’s courts.

Florida’s public school establishment could hardly have a better friend than Florida’s courts.

In Bush v. Holmes (2006), the state supreme court struck down Florida’s Opportunity Scholarship Program, a small voucher program serving fewer than 800 students, on the grounds that it fell afoul of the state constitution’s “uniformity” clause, which allegedly prevents the state from funding any program outside of or “parallel” to the public school system.

Florida judges have been at it again. Late in 2008, a lower court struck down the Florida Schools of Excellence Commission, which was formed at Governor Jeb Bush’s urging in 2006 to provide alternative authorization for charter schools. Without the Excellence Commission, only local school boards can authorize new charter schools. School districts understandably can be loath to see their pupils—and, more important, the state funding that follows them—go to charter schools.

The statute that created the Excellence Commission allowed local school boards to petition the state board of education to retain exclusive authority to sanction charter schools within their districts. Thirty-one of Florida’s 67 local school districts requested such exemptions, but the state board granted only three: to Orange, Polk, and Sarasota, districts that had already created a significant number of charter schools (20, 24, and 9, respectively).

In response to having been denied an exemption, 14 districts led by Duval County challenged the constitutionality of the commission and thus sought to preserve their exclusive authority over chartering. The attorney representing the Duval school board, Ron Meyer, had also represented the Florida Education Association, the statewide teachers union, when it challenged the Opportunity Scholarship program in Holmes.

The plaintiff districts claimed that the commission fatally violated a provision of the state constitution holding that the local “school board shall operate, control and supervise all free public schools within the school district.” The court agreed with the school districts and went beyond just striking down the commission. Harking back to Bush v. Holmes, it ruled that the “statute [creating the commission] permits and encourages the creation of a parallel system of free public education escaping the operation and control of local elected school boards.”

The logic of the ruling leaves many other programs vulnerable to legal challenge. Florida’s virtual school, university-run laboratory schools, schools for juvenile offenders, a school for “high risk” boys including sex offenders, and the state school for the deaf and blind would all count as “parallel” public schools uncontrolled by local boards. Meyer declined to speculate if these other programs would be subjected to a legal challenge.

Members of the commission foresaw the ruling but expected the state board of education to appeal. The board said that “the issue received a fair hearing” and claimed that it “had no legal basis to pursue an appeal.” The Republican governor, Charlie Crist, supported the board’s decision, prompting education reformers to lament the loss of Jeb Bush, who they believed would not have been so submissive.

Supporters of the commission argued that the state constitution makes public education a shared responsibility between the state and local school districts. When the state bears significant funding responsibilities and monitors curricula, teaching credentials, and student assessment, school boards are not exclusively operating, controlling, and supervising schools in their districts. On the other hand, an appeal would have taken the issue to a state supreme court in which success was unlikely. Four of the justices in the Bush v. Holmes majority are still on the seven-member court although one of the four is subject to mandatory retirement this year. Avoiding an adverse decision from the supreme court could make it easier to undo the lower court ruling should conditions become more favorable.

As with the Opportunity Scholarship Program, the elimination of the Excellence Commission will not have a significant immediate effect on Florida schoolchildren. Of 54 charter requests submitted, only one eventually received approval. Had the commission been able to develop as a real alternative to local authorization, larger numbers of charter schools could have been established, and that likely would have created a powerful political constituency in support of charter schools, capable of resisting jealous attacks from the public education establishment.

Joshua Dunn is assistant professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.

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